When the U.S. Supreme Court, in June of 2022, issued its ruling in Dobbs v. Jackson Women’s Health Organization that overturned the 50-year-old ruling in Roe v. Wade, abortion rights were, obviously, left teetering on the edge of extinction. The court’s decision in Dobbs did not blatantly outlaw abortion; instead, the court said the final say in the matter was up to the individual states — which, in states like Texas and Mississippi and Florida, etc., means abortion is effectively banned.
But the Dobbs decision did not just put abortion rights in danger. As many LGBTQ+ legal scholars and advocates have pointed out, the Dobbs ruling calls into question the right to privacy implied in the Due Process Clause of the 14th Amendment to the Constitution. And the right to privacy, they stress, is the bedrock on which much of the LGBTQ+ community’s progress toward equality has been built.
The Supreme Court’s 2003 ruling in Lawrence v. Texas, which overturned the Texas sodomy law and all other such state laws in the U.S. banning private, consensual sexual contact between adults of the same gender, was founded in the Due Process Clause’s inherent right to privacy. Likewise, the court’s landmark 2015 decision in Obergefell v. Hodges, which made marriage equality the law of the land, was based on the Due Process Clause right to privacy argument.
Justice Clarence Thomas, subsequent to the Dobbs ruling, declared that the court had also erred in Obergefell and that he wants a case to come up to give the court an opportunity to overrule itself again. And Texas Attorney General Ken Paxton has made sure everyone knows that as soon as the Lawrence ruling is reversed, he plans on enforcing the Texas sodomy law, which remains on the books here.
So it should be crystal clear: The Dobbs decision overturning abortion rights puts a great, big, flashing target right in the middle of LGBTQ+ equality’s unguarded back. Our marriages, not to mention our private, consensual sex lives, are absolutely in danger.
This is why LGBTQ+ activists throughout the history of our civil rights movement have stressed, over and over and over again, that we HAVE to make personal issues political. We HAVE to reach out and work hand-in-hand, heart-to-heart with those fighting other battles on other issues in the ongoing war toward progress and equality.
So this week, as we here at Dallas Voice publish our annual Weddings Issue, I wanted to take a minute to look back at the history of marriage equality and to remind all of us that we cannot stop fighting.
As early as the 1970s, same-sex couples were going to their local authorities to demand marriage licenses. They were summarily denied, but the fight didn’t stop. Flash forward to Dec. 10, 1990, when three same-sex couples in Hawaii applied for marriage licenses and were denied. Five months later, on May 1, 1991, Baehr v. Lewin was filed on behalf of these couples. And two years after that, on May 5, 1993, Hawaii’s State Supreme Court ruled that denying marriage licenses to same-sex couples violates the state’s constitutional guarantee of equal protection, and sent the case back to the lower courts, requiring that the defendants show a “compelling reason” for refusing marriage licenses to same-sex couples.
As it turned out, the Hawaii Legislature sprang into action, enacting in 1997 the Reciprocal Beneficiary act — basically a domestic partnership law — as a separate but equal solution allowing them to keep legal marriage a heterosexually-sacred right. A year later, Hawaii voters approved a constitutional amendment allowing the legislature to limit legal marriage to opposite-sex couples, and in 1999, the state Supreme Court dismissed the Baehr case because it was no longer relevant, given these legal changes.
Meanwhile, in 1996, Democratic President Bill Clinton, in an effort to appease the right wing and protect his re-election chances, signed into law the Defense of Marriage Act, which banned federal recognition of same-sex marriage and which set off a wave of votes at the state level to amend constitutions banning marriage equality.
But that wave was eventually overtaken and subsumed by a larger, stronger wave. As the Rev. Martin Luther King Jr. said, “The arc of the moral universe is long, but it bends toward justice.” And so it was for marriage equality.
In 2000, Vermont became the first state to establish civil unions. In 2004, Massachusetts became the first state to legally recognize same-sex marriage. Over the next 10 years the tide continued to role.
On June 26, 2013, the U.S. Supreme Court overturned Clinton’s DOMA. By Jan. 1, 2015, 37 of the 50 United States legally recognized same-sex marriage, either through affirmative action to do so or by way of federal court rulings deeming marriage bans unconstitutional. Then, on June 25, 2016, SCOTUS issued its ruling in Obergefell, and marriage equality bans were officially a thing of the past.
So we thought; so we hoped.
It took a very long time and a lot of effort — and heartbreak and disappointment — to get to get to where we are today in terms of marriage equality. And while we thought that right was safe, it’s becoming more obvious by the day how wrong we were. The bend of our arc has not reached justice yet.
So what does that mean? It means you have to make your personal political. It means we have to reach out and partner with other progressive causes seeking justice and equality. It means keep fighting. At every level, in every arena, every day for every reason — KEEP FIGHTING. ■
Tammye Nash is managing editor of Dallas Voice. The opinions expressed here are her own.